Central Administrative Tribunal - Chandigarh
S K Sardana vs M/O Defence on 24 October, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH ORIGINAL APPLICATION NO.060/00585 {2016 Chandigarh, this the 24t» day of October, 2017 CORAM:UHON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J) S.K. Sardana s/o Late Sh. L.K. Sardana aged 57 years resident of House No. 409, Ward No. 5, Mohalla Sangian Street, Chotta Bazar, Thanesar Kurukshetra ~ 136118.
«APPLICANT {Argued by: Shri. Navjot Singh, Advocate} VERSUS
1. Union of India through the Secretary to Government of India, Ministry of Defence, South Block, New Delhi.
from the record, is that applicant S.K. Sardana s/o late Sh. LK. Sardana, initially joined as an Indian Defence Estates Service Officer in the year 1985, in the office of Director General of Defence Estates. Subsequently, he was promoted to the post of JAG SG (Selection) Grade on 5.5.2006 and SAG w.e.f. 01.04.2008. He tendered voluntary retirement notice w.ef. 31.07 2011, which was declined by the Competent Authority.
2. In the wake of O.A. No. 1330/PB/2011, instituted by the applicant, the impugned orders therein (Annexure A-I and A-1/1 to
-2- O.A. No. 060/00585/2016 A-1/3}, were quashed by this Tribunal. In pursuance thereof, although the request of the applicant for voluntary retirement was accepted but the retiral benefits were not disbursed to him, which necessitated him to file M.A. bearing No. 10/2013 in O.A. No. 1330/PB/2011, in which it was ordered that the relevant retiral benefits be disbursed to the applicant within a period of twa months, vide order dated 14.01.2013 (Annexure A-2}, by this Tribunal.
3. Strangely enough, the respondents did not make the payment of entire retiral benefits along with the interest, and the applicant has preferred the instant O.A,, laiming the interest on delayed payment of retiral benefits, and also to 'pay, the retirement TA/DA nter affidavit, but ey Hich the factual matrix was admitted. However, it was pleaded in para 12 thereof as under:-
"That the Applicant was released the following amounts:-
{a} GPF of Rs.8,48,714/ on 21 May 3013. {ob} CGEGIS of Rs. 1,02,384/- on 21 May 2013
(c) Leave encashment of Rs.8,15,261/- on 21.05.2013.
(d} PPO on 16.05.2013 for release for DCRG of Rs.10,00,000 and commutation of pension of Rs,11,07,085/-. {ec} The Bank credited DCR gratuity of Rs.GLac on 27.06.2013 and Rs.i Lac on 31.01.2014.
() The Bank credited commutation of pension of Rs.11,07,086/- on 27.06.2013.
(g} That as per order dated 27.09.2013 of the Hon'ble CAT, See Chandigarh Bench in CP NO. 71/2013 filed by applicant, the amount of Rs.20.103/- on account of outstanding amount of GPF released to applicant vide cheque no. 507074 dated 08.01.2014, The amount of Rs.1,00,000/- has been credited in the account of the applicant. Further, a PPO No. c/MISC/CORR/109/2014 dated 28.02.2014 for an amount of Rs.1,51,858/- on account of interest payable for delay in releasing the DCRG amount
a) ~3- O.A. No. 060/00585/2016 has been published as per directions of the Hon'ble Court. The orders of the Hon'ble Tribunal was complied with."
S. On the strength of the aforesaid grounds, the respondents have pleaded that the applicant is not entitled to any interest, and prayed for dismissal of the O.A.
6. Having heard the learned counsel for the parties, having gone through the record, with their valuable assistance and after considering the entire matter, [ am of the considered opinion that the instant O.A. deserves to be partly accepted in the manner and for the reasons mentioned herein below.
7. As depicted herein above, the facts of the case are neither intricate nor much disp within a very narrow compass, to decide th real : between 'the parties. Such
9. What cannot possibly be disputed here, is that this Tribunal had specifically held that the applicant would be deemed to have been retired w.e.f. 31.07.2011, vide order dated 11.12.2012 {Annexure A-1}, which admittedly had attained finality. Not only that, while deciding MA NO. 10/2013 in O.A. NO.1330/PB/2011, two months time was granted to the respondents, to disburse the retiral benefits to the applicant. It is not a matter of dispute that the respondents have released the retiral benefits from May, 2013 to 04.03.2014, as depicted in the pointed affidavit of Estate ya ~4. O.A. No. 060/00585/2016 Officer and table (Annexure A-5), much after deemed date of his retirement ic. 31.07.2011. It is now well settled principle of law that the retiral benefit is not a bounty given to an employee, it is his hard earned money and non release of retiral benefits within a reasonable period effects his fundamental right, and he is entitled to receive the same within a reasonable period, failing which it will entail interest in his favour. This matter is no more res integra and is now well-settled.
10. An identical question came to be decided by the Hon'ble Supreme Court in the case of State of Jharkhand & Others Vs. Jitendra Kumar Srivastava & Another 2013 (12} SCC 2010, "12. Right e by the Cor aspect, we "have ced'to consider the Same,
30. According to the petifioner:the fight to receive pension is property and the respondents by an executive order dated June 12, 1968 have wrongfully withheld his pension. That order affects his fundamental rights under Articles 19(1)}( and 31{1) of the Constitution. The respondents, as we have already indicated, do not dispute the right of the petitioner te get pension, but for the order passed on August 5, 1966. There is only a bald averment in the counter~ affidavit that no question of any fundamental right arises for consideration. Mr. Jha, learned counsel for the respondents, was not prepared to take up the position that the right toa receive pension cannot be considered to be property under any circumstances. According to hirn, in this case, no order has been passed by the State granting pension. We understood the learned counsel to urge that if the State had passed an order granting pension and later on resiles from that order, the latter order may be considered to affect the petitioner's right regarding as property so as to attract Articles 19(1)(9 and 31(1} of the Constitution,
31. We are not inclined to accept the contention of the learned counsel for the respondents. By a reference to the material provisions in the Pension Rules, we have already indicated that the grant of pension does not depend upon an order being passed by the authorities to. that effect. It may be that for the purposes of &s i.
Se O.A. No. 060/00585/2016 quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to an officer not because of the said order but by virtue of the Rules. The Rules, we have already pointed out, clearly recognise the right of persons lke the petitioner to receive pension under the circumstances mentioned therein.
32, The question whether the pension granted to a public servant is property attracting Article 31(1) came up for consideration before the Puniab High Court in Bhagewant Singh vo Union of India A.LR. 1962 Pun
903. it was held that such a right constitutes "property" and any interference will be a breach of Article 31(1) of the Constitution. It was further held that the State cannot by an executive order curtail or abolish altogether the right of the public servant to receive pension. This decision was given by a learned Single Judge. This decision was taken up in Letters Patent Appeal by the Union of India. The Letters Patent Bench in its decision in Union of India v. Bhagwant Singh 1.L.R. 1965 Pun 1 approved the decision of the learned Single Judge. The Letters Patent Bench held that the pension granted to a public servant on his retirement is "property" within the meaning of Article 31(1] of the Constitution and he could be deprived of the sarne only by an authority of law and that:pension does not,cease to be property on the mere denial.or canicell s urther held that the character of pensit quoted with jer decisions of eld that the pension : he sweet will and pleasure of the G superannuation pension including. its*, valuable right' vesting in a Government servant.Jlt was f held by the majority that even though an opportunity had already been afforded to the officer on an earlier occasion for showing cause" agains penalty for lapse or miséenduct on.his™ misconduct already proved against him, a further opportunity to show cause in that regard must be given to the officer. This view regarding the giving of further opportunity was expressed by the learned Judges on the basis of the relevant Punjab Civil Service Rules. But the learned Chief Justice in his dissenting judgment was not prepared ta agree with the majority that under such circumstances a further opportunity should be given to an officer when a reduction in the amount of pension payable is made by the State. It is not necessary for us in the case on hand, to consider the question whether before taking action by way of reducing or denying the pension on the basis of disciplinary action already taken, a further notice to show cause should be given to an officer. That question does nat arise for consideration before us. Nor are we concerned with the further question regarding the procedure, if any, to be adopted by the authorities before reducing or withholding the pension for the first time after the retirement of an officer. Hence we express no opinion regarding the views expressed by the majority and the minority Judges in the above Punjab High Court decision, on this aspect, But we agree with the view of the majority when it has approved its earlier decision that pension is not a bounty payable on the ~G- OA. No. 060/00585/2016 sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
34, This Court in State of Madhya Pradesh v. Ranojirag Shinde and Anr. MANU/SC/0030/ 1968 : [1968]3SCR489 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1})(} and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".
35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1} and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also property under Article 19(1)(j and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundarnental right of the petitioner under Articles 19(1}(f) and 31(Dof the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act(Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to propel i the claim of the petitioner Constitation June, 1979, fundamental rat case was (Death- cum-
the Governor to. wW 'draw a pension or any part thereof under certain "circumstances 'an the. said challenge was repelled by this Courts. " : ve Fact remains that there is an. » imprimatur to the legal principle that the right to receive pension is recognized as a right in "property".
14, Article 200 A of the Constitution of India reads as under:
"300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced,
15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law" within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold -7 O.A. No. 060/00585/2016
even a part of pension or gratuity. As we noticed above, so far as Statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different."
lt. Thus, the amount of retiral benefits is hard-earned money of the applicant and its payment cannot be delayed on wishful thinking and speculative grounds, by the respondents. It is not a matter of dispute that the respondents have only paid the interest payable for delay in releasing the amount of DCRG but did not pay interest on the remaining amount. Even if the contention of learned counsel for the respondents that some reasonable time is to be granted to the competent authority to release the amount, is ate of actual payment.
, the instant O.A. is hereby amount of interest @ 9% p.a. on remaining delayed retiral benefits to the applicant, to the extent and in the indicated manner, within a period of three months, from the date of receipt of certified copy of this order. However, the parties are left to bear their own costs. ON MEMBER (J) Dated: 24.10.2017 Tr fl yo y,